Giving a free hand to the market?

LISBON EXPLAINED PART 7:Rejecting Lisbon, as urged
by the TEEU, would leave workers relying on existing EU treaties
and European Court of Justice case law, which unions say favours
the rights of business over workers

THE DECISION by the Technical Engineering and Electrical Union
to urge its 45,000 members to vote against Lisbon was a setback for
the Yes campaign. The union blamed recent judgments issued by the
European Court of Justice (ECJ) on labour rights, which it said had
swung the pendulum in the EU against workers and in favour of
business.

The far left has also declared war on Lisbon, with veteran
socialist campaigner Joe Higgins claiming it would "give a further
impetus to the right-wing, neo-liberal agenda which the EU has been
driving".

It is true that Lisbon boosts the EU's powers in the area of
services of general economic interest, such as electricity and
telecoms, by providing a legal base to introduce new
legislation.

But portraying Lisbon as some sort of Trojan horse which will
usher in a new phase of liberalisation and the privatisation of
public services is to ignore the safeguards inserted into the
treaty to protect states' services sectors.

The European Trade Union Confederation (ETUC), which represents
86 unions across 36 countries, is also strongly backing the treaty
because of several new initiatives that it believes should bolster
workers' rights and the position of organised labour.

Lisbon provides three significant advances to the area of social
rights: making the Charter of Fundamental Rights legally binding;
inserting a social clause that requires EU institutions to consider
the social impact of new proposals; and inserting a protocol to
protect the special character of public services.

The charter, the impact of which has already been assessed in
this series, elevates labour rights to the same status as political
and civil rights. It states that every worker has the right to:
conditions that respect health, safety and dignity; protection
against unjustified dismissal; collective bargaining; and
information and consultation.

Debate still rages between legal experts over what impact the
charter would have on EU and domestic law. Lisbon states clearly
that it applies to EU legislation and not domestic law, but some
trade unionists believe judges at the ECJ could use the charter as
a basis to bolster union rights in states like Ireland where
companies are not obliged to engage in collective bargaining.

The ETUC is already invoking the charter in its dialogue with
the European Commission to persuade it to legislate to overturn a
series of recent ECJ judgments that have eroded workers'
rights.

Any future EU legislation will also have to take into
consideration a social clause in Lisbon which states: "In defining
and implementing its policies and activities, the Union shall take
into account requirements linked to the promotion of a high level
of employment, the guarantee of adequate social protection, the
fight against social exclusion, and a high level of education,
training and protection of human health."

There is no guarantee that these changes would persuade ECJ
judges to overturn recent rulings such as the Laval case, which
accepted that the right to strike is a fundamental right, but not
as fundamental as the right of business to supply cross-border
services. But the TEEU's call to reject Lisbon would leave workers
relying on existing EU treaties and ECJ case law, which unions say
favours the rights of business over workers.

Left-wing Lisbon critics have warned that provisions in the
treaty which give the EU the power to create framework legislation
in the areas of services of general economic interest such as
telecoms and electricity could force further privatisation. They
also fear that a clause ensuring "that competition is not
distorted" in the internal market could be used to force
privatisation of services such as electricity, post and
telecoms.

Yet provisions to prevent the "distortion of competition" are
already in the existing EU treaties. Lisbon also qualifies the role
of the EU in the services area in Article 2.27, which states that
"regulations shall define these principles and conditions, without
prejudice to the competence of member-states to provide, commission
and fund such services". It also introduces a specific protocol on
services of general interest designed to recognise "the essential
role and the wide discretion of national, regional and local
authorities in providing, commissioning and organising services of
general economic interest".

This protocol was inserted at the insistence of the Netherlands,
which had been concerned that recent ECJ judgments were threatening
to undermine its ability to fund public housing. It also extends
its scope to non-economic services of general interest such as
health and says the treaty should in no way affect the "competence
of member-states to . . . commission and organise" these types of
sensitive services.

The treaty makes changes to commercial policy by providing the
EU with a specific legal base to agree trade deals that include
social, education and health services and foreign direct investment
on the basis of qualified majority voting.

But, once again, specific safeguards exist for public services,
with the treaty stating that unanimous voting is required when
agreements risk "seriously disturbing the national organisation of
such services and prejudicing the responsibility of member-states
to deliver them".

The principle of unanimity will also remain for any trade deal
on foreign direct investment that includes provisions normally
decided by unanimity, such as tax.

Claims by Libertas and Sinn Féin that Lisbon removes
Ireland's ability to veto a World Trade Organisation (WTO) deal
because of the possible move to qualified majority voting on
social, education and health services are inaccurate.

WTO deals usually exclude these sensitive sectors from the
start. The continued requirement for unanimous voting comes from
other areas, such as transport services and intellectual property
rights, which fall outside the exclusive competence of the EU.
These areas are always included in big trade deals, such as the
Doha round in the WTO, and will safeguard Ireland's veto.

The business lobby can point to clear advances in Lisbon. For
example, it successfully lobbied to have "competitiveness"
recognised as an overall objective of the Union. The EU will also
gain competence over intellectual property, a move that could
enable talks on an EU community patent to be approved after years
of fruitless debate, and it can act to combat cross-border threats
to health and tobacco and alcohol abuse.

However, contrary to the claims of the far left, Lisbon does not
provide a new legal base for a further shift towards a more
neo-liberal Union. If anything, the charter, a new social clause
and the protocol on services of general interest could end up
boosting social rights.

Sinn Féin argues that rejecting the treaty would force EU
leaders to come back to the negotiating table to agree a new treaty
with a stronger social input to better protect workers' rights. But
given the pro-business sentiment that exists in Ireland, Britain
and many new EU states, it is unlikely that any big changes could
be achieved in the medium term.

It should be noted that devolving more power to the EU in the
field of social affairs could actually enhance labour rights as
Ireland remains one of the most pro-business states in the EU. One
example of this is its recent decision to team up with Britain to
veto a proposed directive which would have provided more rights to
agency workers.

Lisbon: at a glance

Lisbon boosts EU influence in the area of services of general
economic interest such as electricity and telecoms by providing a
legal base to introduce framework legislation.

A protocol on services of general interest aims to clarify that
national, regional and local authorities have wide discretion to
provide, commission and organise public services.

The Charter of Fundamental Rights is made legally binding for
all EU legislation, thereby elevating the status of workers' rights
to the same level as political and civil rights.

New social clause will force the European Commission to consider
the social impact of any new legislative proposals.

Decision-making at the council of ministers on international
trade deals will continue to be decision by qualified majority
voting.

However, any deals touching on transport or intellectual
property rights, such as a WTO agreement, need the unanimous
backing of states.

Any agreement in the field of social, education and health
services will be decided by unanimity "where these agreements risk
disturbing the national organisation of such services and
prejudicing the responsibility of member-states to deliver
them".